Sunday, January 8, 2012

Hungary heads in undemocratic direction

Fidesz has created a deeply illiberal constitution that ensures it will exercise power even if the party loses future elections

Jan-Werner Mueller

25 April 2011

Last Monday, the Hungarian parliament passed a new "fundamental law", today the country's president will sign what some observers call the "Easter constitution" – and what many critics see as a clear departure from shared European standards for liberal democracy. So is Hungary the first EU member ever to turn into an authoritarian state?

This is of course not how Fidesz – the governing party which holds a two-thirds majority in parliament – sees things. In the runup to last week's vote it ostentatiously consulted the Council of Europe's Venice commission, whose jurists are supposed to protect and promote the rule of law in Europe – except that the commission's experts never really got to see the whole constitution and subsequently expressed deep doubts about the project.

Fidesz politicians have also been eager to explain to the US government – and to the American public, in a well-placed op-ed piece in the Wall Street Journal – that the new constitution means the final overcoming of communism. After all, the old constitution had originated as a Stalinist document in 1949. What the political PR experts conveniently forget to mention is that since 1989 it has been amended utterly out of recognition (the only remaining clause of the original constitution, so the joke goes, was that "Budapest is the capital of Hungary"). They also omitted that in the last two decades Hungary had acquired an internationally respected constitutional court with an impressive record of liberal-democratic jurisprudence.

But other than a bit of myth-making in presenting the new constitution, what is the problem? Well, to start with, the missing mandate. The government claims that last year's elections, when Fidesz gained slightly over 50% of the vote (but owing to the peculiarities of the electoral system many more parliamentary seats), was a "revolution at the ballot box" which legitimised a new "system of national co-operation".

Except that Fidesz had not campaigned on the issue. Their victory is explained by voters' desire to throw out the corrupt socialists, not some deep longing for a "national revolution". Since then, the opposition parties did not at all participate in drafting the new constitution. A supposed consultation process, where citizens were sent questionnaires (when the document was essentially already finished), hardly lends the process legitimacy; only a popular referendum on the constitution could. But this the government has steadfastly refused.

If the process of drafting the constitution was politically one-sided, so is the document itself: its preamble – the "profession of national faith" – enshrines an ethnic vision of Hungary as a Christian country and rather pathetically evokes historical grandeur. Many Hungarians simply cringe when they read the preamble's trumpeting of Hungarian achievements in the world and the saga of how one small country saved Europe from the Turks. Outsiders, on the other hand, may want to go easy on what appears to be the inferiority complex of a country that has never quite overcome the impact of huge losses of people and territory after the first world war.

But the preamble is not just national martyrology and kitschy symbolism. Its national conservative values, so one constitutional article states, are to inform interpretations of the document as a whole. Many international experts construe further provisions to mean that all the liberal democratic constitutional jurisprudence since 1989 – being still connected to the originally communist constitution – is invalid..

Now, consider two further "innovations": first, a comprehensive weakening of checks and balances – notably a much enfeebled new constitutional court – and the fact that the new constitution will be virtually impossible to amend, while much legislation, notably budgets, can only be passed with a two-third majorities. Second, the systematic staffing of the judiciary and other nominally independent agencies with Fidesz appointees for exceptionally long periods.

What is the result? Fidesz's nationalist vision has potentially been enshrined forever: even if the party loses future elections, its appointees will keep exercising power, while the party itself will in all likelihood retain considerable influence, since no other political grouping is likely to muster a two-thirds majority. Any potential leftwing government will be highly constrained; its budget could be vetoed by the (Fidesz-staffed) budgetary council, upon which the (Fidesz-appointed) president can dissolve parliament.

Even if other parties were eventually able to hold a referendum to get rid of the Fidesz constitution, this would only further deepen the country's split between left and right, making it likely that a different constitution would in turn be seen as illegitimate by the right. In short, Fidesz's completely party-political constitution programmes a series of constitutional crises – and perhaps even a kind of cold civil war.

To be sure, Fidesz representatives have been eager to say that many of the new constitution's provisions are similar to ones found in other European countries. But there is no preamble like the new Hungarian one, and, in any case, the constitution has to be seen as a whole package, not as an assembly of individual articles. So, this package is deeply illiberal and departs from shared European understandings of democracy, which should involve a legitimate opposition – in contrast to a "democracy" where one party, whether in or out of power, claims permanently to speak for the nation as a whole.